Monday, September 21, 2009

Tennessee dispenses with restriction on "paramour" while children are present

The father of two teenagers did not object to the presence of the mother's same-sex partner while the mom had custody of the children, but a trial judge nonetheless followed a "rule" that no "paramour" could sleep at the home of either parent while the children were also in the home. Since the father was remarried, this "paramour provision" did not apply to him.

Well, the Tennessee Court of Appeals has ruled in Chandler v. Barker, that a trial judge must base custody decisions on a child's best interests, not a rigid application of such a rule. Congratulations to the ACLU which represented the mom. The father did not file a brief in opposition to her appeal.

About 10 years ago I represented a gay dad in Maryland (as a Lambda Legal cooperating attorney) in a dispute over his visitation rights. He and the children's mom disagreed about how much visitation time he should have, but the mom did not ask the court to prohibit the dad's partner from sleeping in their home while the children were there. Nonetheless, the trial judge made that a condition of the visitation. Even though the mother had not requested the restriction, she defended it through two levels of appeals courts. We won at both levels.

The rule against the presence of "paramours" sounds like a relic of a distinct past. It isn't. With many of us fighting (often successfully!) for full recognition of the parentage of same-sex couples who raise children together, it can be easy to forget that lesbian mothers and gay fathers who come out after they have had children within heterosexual marriages still -- in many states -- face obstacles to their ability to fully parent their children. I'm glad Tennessee has removed this one, but all it has done is said that the "paramour provision" cannot be imposed without considering the child's best interests. It's a start, but it is by no means a guarantee that a judge won't get away with imposing such a restriction on flimsy reasons that do not fully honor our families and relationships.

About Me

I have been working on gay and lesbian family law issues for more than 35 years. I teach at American University Washington College of Law, but for the 2011-2012 academic year and the Fall Semester 2012 I was the McDonald/Wright Chair of Law at UCLA. I have published many law review articles and book chapters. BEYOND (STRAIGHT AND GAY) MARRIAGE is my first book.